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MSHA sets hearings on proposal to revise civil penalty procedures

MSHA has scheduled two public hearings in December to take comments on its proposal to revise civil penalties procedures in connection with citations issued to mine operators under its Part 100 regulations. The hearings were scheduled in response to what the agency said were requests from stakeholders.

The agency said the sweeping changes in its proposed rule, released July 31, would promote consistency, objectivity, and efficiency in its citation and order-issuing process and facilitate improved compliance and early resolution of enforcement issues. These changes also would hold operators more accountable and encourage them to be more proactive in addressing safety and health concerns, MSHA said.

MSHA proposes a “good faith” reduction of 20 percent in a fine, provided neither the violation nor the resulting fine are contested and the amount is paid before it becomes a final order. This would be in addition to a 10 percent reduction already allowed for abatement of a violation within the time frame set by the inspector. The agency intends the incentives to encourage operators to allocate more resources to hazard prevention.

However, individuals who have submitted comments view the rulemaking with suspicion. One commenter called the 20 percent reduction “an insult” because it suggests MSHA believes the primary motive for contesting citations is to reduce the fine, when in many cases operators mount challenges because they believe the citation does not reflect the conditions or circumstances described. Another commenter asserted that inducing “dubious, questionable and wrongful citations/violations” to go unchallenged contributes to poor inspections. “Contesting violations is a way that the industry can self-police the regulator,” the commenter contended. Several comments sought clarification on what impact the provision would have on informal citation conferences, which operators may request outside the legal system.

The agency’s penalty procedures call for inspectors to classify an alleged violation in a number of ways, based, in part on the gravity of the offending condition and extent of the mine operator’s negligence. The gravity criterion measures the severity of the alleged infraction and includes several subcategories. MSHA proposes to cut both the number of negligence categories as well as those in the gravity subcategory known as “likelihood of occurrence” from five to three. Doing so would help promote the consistency, objectivity and efficiency the agency said it was seeking.

But commenters see the proposed changes as limiting operators’ ability to launch a legal challenge. In part, this concern rests on a belief that more citations will be written as significant and substantial (S&S); i.e., as violations of mandatory safety and health standards that the inspector believes could reasonably lead to serious injuries or illnesses. S&S citations and orders lead to higher fines and increase the possibility the operator could be subject to still harsher enforcement measures.

The agency also proposes to increase fines by 50 percent for citations and orders written as high negligence or reckless disregard as a way to promote greater deterrence and encourage more diligent compliance. However, a commenter called attention to MSHA’s remark in the proposal’s preamble that several special agency enforcement initiatives designed to enhance operator accountability for violations and hazards already have achieved that objective. “If the initiatives have worked, why is there a need for more deterrence?” the commenter asked.

Another provision, to constrain the ability of administrative law judges to review MSHA enforcement actions de novo, also has received a cool reception. Commenters insist that judges, as neutral arbiters of enforcement disputes, need a free hand to render their decisions. Stakeholders also question the provision on due process grounds. Since independent judicial review is specifically sanctioned by the Mine Act, they also wonder if the provision is even legal.

The hearings will be held December 4 at MSHA headquarters in Arlington, VA and December 9 at the Courtyard by Marriott Denver Downtown, Denver, CO. Post-hearing comments are due by Jan. 9, 2015.

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